NO. 95-319

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN THE MATTER of the Suspension

of the Driver's License of JOHN

D. BAUER,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.

APPEAL FROM: District Court of the Sixth Judicial District,

In and for the County of Park,

The Honorable Wm. Nels Swandal, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Bruce Becker, Livingston, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Jennifer

Anders, Helena, Montana; Tara Depuy, Park County

Attorney, Kendra K. Anderson, Deputy Park County

Attorney, Livingston, Montana

Filed:

Submitted on Briefs: November 9, 1995

Decided: January 30, 1996

I

Clerk
Justice James C. Nelson delivered the Opinion of the Court.

Appellant, John D. Bauer (Bauer), appeals the order of the

District Court for the Sixth Judicial District, Park County,

denying Bauer's petition to reinstate his driver's license and

suspending Bauer's driver's license for 90 days. We affirm.

We address the following issue on appeal:

Did the arresting officer have reasonable grounds to believe

that Bauer was driving under the influence of alcohol?

BACKGROUND

On January 14, 1995, Park County Deputy Sheriff Steffins was

on a routine patrol south of Livingston. At 2:34 a.m., he received

a call to back up Livingston City Police Officer Brack. As Deputy

Steffins headed north toward Livingston, he observed a unique,

dark, 1964 Ford sedan also travelling toward Livingston. Deputy

Steffins paced the car going 75-85 miles per hour. He noticed the

car braking hard around the curves and observed the car swerve

across the center line more than once. At the time, Deputy

Steffins estimated his own rate of speed at about 90-95 miles per

hour. Deputy Steffins testified that he would have stopped the

1964 Ford sedan immediately for investigation of a DUI if he had

not been responding to a request for back up. He did however,

radio dispatch to give a description of the car and report his

observations.

As Deputy Steffins passed the vehicle, he noticed a male

driver and a passenger in the front seat. Shortly after passing

the vehicle, the dispatcher advised Deputy Steffins that he was no

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longer needed in Livingston to back up Officer Brack. At 2:36

a.m., Deputy Steffins pulled onto a Forest Service road to wait for

the 1964 Ford sedan to pass. He saw headlights approach from the

south, but the vehicle turned off of the highway. Deputy Steffins

drove back to where he had last seen the vehicle, but could not

find it. He notified the dispatcher that he was discontinuing his

search and would return to his routine patrol in Livingston.

Between 2~46 and 2~54 a.m., Deputy Steffins responded to a

shoplifting call and a domestic abuse call. While searching for

one of the subjects involved in the domestic abuse, Deputy Steffins

saw the unique, dark, 1964 Ford sedan. He pulled the vehicle over

at 3:13 a.m., 38 minutes after he first saw the vehicle south of

Livingston, and asked for registration, proof of insurance, and

identification. Deputy Steffins asked Bauer, the car's driver, why

he had turned off the highway and where he had gone. Bauer

responded that he had gone to an old gravel pit. While talking to

Bauer, Deputy Steffins noticed a strong smell of alcohol on Bauer's

breath, that Bauer's eyes were bloodshot and glassy, and that

Bauer's speech was very slow and deliberate.

Based on his observations of Bauer's driving and his

observations of Bauer's condition, Deputy Steffins asked Bauer to

perform some physical maneuvers. Bauer was not able to complete

his ABC's, showed no elliptical movement in the Romberg test, and

could not stand on one leg past the count of ten.

At 3:lP a.m., Deputy Steffins placed Bauer under arrest for

operating a motor vehicle while under the influence of alcohol.

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Deputy Steffins transported Bauer to the Park County jail and cited

him for driving while under the influence of alcohol, night

speeding, and not having proof of liability insurance. Deputy

Steffins read Montana's Implied Consent Law to Bauer, yet Bauer

refused to submit to a breathalyzer test. Deputy Steffins issued

Bauer a 72-hour driving permit and released him on bail.

On January 25, 1995, the Montana Department of Justice issued

its order suspending Bauer's driver's license. Bauer filed a

petition for reinstatement of his driver's license on February 14,

1995, which the District Court for the Sixth Judicial District,

Park County, denied. Bauer appeals the suspension of his driver's

license and the District Court's order denying his petition to

reinstate his driver's license.

DISCUSSION

Did the arresting officer have reasonable grounds to believe

that Bauer was driving under the influence of alcohol?

Bauer contends that at the moment of the arrest, Deputy

Steffins did not have probable cause to stop Bauer and therefore

did not have reasonable grounds to believe that Bauer had been

driving or was in physical control of a vehicle while under the

influence of alcohol. Specifically, Bauer claims that § 61-a-402,

MCA, the Implied Consent Law, requires an officer to have

reasonable grounds to believe that a driver of a motor vehicle is

under the influence of alcohol before he can legally stop the

driver and require the driver to submit to a breathalyzer test.

Moreover, Bauer claims that under § 61-8-403, MCA, a driver who

refuses to take a breathalyzer test under the Implied Consent Law,

4
can have his or her driving privileges restored where the officer

did not have reasonable grounds to believe the accused was

operating a motor vehicle under the influence of alcohol.

The standard of review of a district court's findings of fact

is whether the findings are clearly erroneous. Daines v. Knight

(19951, 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia

Grain Intern. v. Cereck (19931, 258 Mont. 414, 417, 852 P.2d 676,

678). In Interstate Production Credit v. DeSaye (1991), 250 Mont.

320, 323, 820 P.2d 1285, 1287, we adopted a three-part test to

determine if a finding of fact is clearly erroneous. If we

determine that the finding is supported by substantial credible

evidence and therefore meets the first prong of the test, the

finding of fact is not clearly erroneous. We review conclusions of

law to determine whether the district court's conclusions were

correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271

Mont. 459, 469, 898 P.2d 680, 686.

Title 61, chapter 8, part 4, MCA, covers driving under the

influence of alcohol or drugs. Section 61-a-402, MCA, provides

that any person who operates a motor vehicle on the ways of the

state open to the public is deemed to have given consent to a

chemical test to determine the alcoholic content of his or her

blood. A person may refuse to submit to the chemical test, but if

the person refuses to submit to the test, the arresting officer

must seize his or her driver's license. Specifically, §§ 61-a-402

and 403, MCA, provide as follows:

61-E-402. Blood, breath, or urine tests. (1) A

person who operates or is in actual physical control of

5
a vehicle upon ways of this state open to the public is

considered to have given consent, subject to the

provisions of 61-8-401, to a test or tests of the

person's blood, breath, or urine for the purpose of

determining any measured amount or detected presence of

alcohol or drugs in the person‘s body if arrested by a

peace officer for driving or for being in actual physical

control of a vehicle while under the influence of

alcohol, drugs, or a combination of the two. The test or

tests must be administered at the direction of a peace

officer who has reasonable srounds to believe that the

person has been drivincr or has been in actual phvsical

control of a vehicle upon wavs of this state open to the

public while under the influence of alcohol, druss, or a

combination of the two. . . . [Emphasis added.]

61-E-403. Right of appeal to court. (1) Within 30

days after notice of the right to a hearing has been

given by a peace officer, a person may file a petition to

challenge the license suspension or revocation . .

(4) (a) The court shall take testimony and examine'the

facts of the case, except that the issues are limited to

whether:

(i) a peace officer had reasonable grounds to believe

that the person had been driving or was in actual

physical control of a vehicle upon ways of this state

open to the public while under the influence of alcohol,

drugs, or a combination of the two;

(ii) the person was placed under arrest; and

(iii) the person refused to submit to the test or tests.

(b) The court shall determine whether the petitioner is

entitled to a license or whether the petitioner's license

is subject to suspension or revocation.

In Jess v. State, Dept. of Justice, MVD (1992), 255 Mont. 254,

841 P.2d 1137, we addressed the issue of whether there was

sufficient evidence in the record to support the trial court's

conclusion that the arresting officer had reasonable grounds to

suspect that the appellant had been driving under the influence of

alcohol. In Jess -r a witness followed the appellant for some

distance and observed the appellant drive erratically and swerve

across the center line. The witness notified the Columbus

sheriff's office of appellant's driving and gave the officers the

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license plate number and a description of the vehicle. An officer

from the dispatch station located the vehicle outside of a bar.

When the officer found the appellant, the appellant had bloodshot

eyes, slurred speech, and was staggering. -,Jess 841 P.2d at 1141.

In -IJess the appellant claimed that the officers did not have

the requisite particularized suspicion to investigate him. Thus,

this Court analyzed the issue of whether the arresting officer had

reasonable grounds to suspect that the appellant had been driving

under the influence of alcohol in terms of whether the arresting

officer had a particularized suspicion to warrant an investigatory

stop. We noted that "[iln determining whether an officer is

justified in making an investigatory stop, the State must prove the

existence of a 'particularized suspicion."' Jess, 841 P.2d at 1140

(citing Matter of Suspension of Driver's License of Blake (1986),

220 Mont. 27, 712 P.2d 1338). We concluded that although the

officers did not see the appellant driving, the witness's

information combined with the appellant's condition created

sufficient evidence that the officer had reasonable grounds to

suspect the appellant had been driving under the influence of

alcohol and had reasonable grounds to detain him. -,Jess 841 P.2d

at 1141. We note that "reasonable grounds" provided for in §§ 61-

8-402 and 403, MCA, and discussed in Jess is really the same test

as "particularized suspicion" provided for in § 46-5-401, MCA, and

discussed in State v. Reynolds (1995), -Mont. __, 899 P.2d 540,

541-42, 52 St.Rep. 600, 602.
We recently set forth an analysis of particularized suspicion

for an investigative stop in Reynolds, 899 P.2d at 541-42. In

Revnolds, we noted that the Montana Legislature amended 5 46-5-401,

MCA, the investigative stop statute, to comport with United States

Supreme Court and Montana case law. Section 46-5-401, MCA, now

supports an investigative stop on the basis that the arresting

officer has a particularized suspicion that an offense has been

committed. Section 46-5-401, MCA, provides:

Investigative stop. In order to obtain or verify an

account of the person's presence or conduct or to

determine whether to arrest the person, a peace officer

may stop any person or vehicle that is observed in

circumstances that create a particularized suspicion that

the person or occupant of the vehicle has committed, is

committing, or is about to commit an offense. [Emphasis

added. 1

When a police officer seizes a person, such as in a brief

investigatory stop, the Fourth Amendment right against unreasonable

searches and seizures applies. Revnolds, 899 P.2d at 542 (citing

Terry v. Ohio (19681, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20

L.Ed.2d 889, 899). Recognizing that an investigatory stop must be

justified by some objective manifestation that the person stopped

is, has, or is about to be, engaged in criminal activity, the

United States Supreme Court set forth, and this Court adopted, a

two-part test to evaluate whether a police officer has sufficient

cause to stop a person. United States v. Cortez (1981), 449 U.S.

411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628; State v.

Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296.

First, the state must show objective data from which an

experienced officer can make certain inferences. Second, the state

8
must show a resulting suspicion that the occupant of a certain

vehicle is or has been engaged in wrongdoing. Gooher, 631 P.Zd at

296. In Gopher, we held that a particularized suspicion existed to

justify stopping a vehicle that slowly drove past and exhibited

unusual curiosity in the crime scene.

In Reynolds, this Court noted that the issue of whether or not

a particularized suspicion existed in order to justify an

investigatory stop is factually driven. Revnolds, 899 P.2d at 543.

For example, in Blake, we held that a petitioner's exhibiting

patterns consistent with a person driving while under the influence

of alcohol by swerving into the other lane and driving in the

vicinity of several bars at around 2:00 a.m., was sufficient to

support a particularized suspicion that the petitioner may have

been driving while under the influence of alcohol. Blake, 712 P.2d

at 1341.

Similarly, in State v. Morsette (1982), 201 Mont. 233, 654

P.2d 503, the totality of the circumstances created a

particularized suspicion justifying an investigatory stop. After

being alerted that a nearby farm had been broken into, a neighbor

saw an unfamiliar truck driving by the house very fast. Acting on

the information from the neighbor, a deputy followed the tire

tracks from the nearby farm to the truck that matched the

neighbor's description. Although the deputy did not see the truck

commit any traffic violations, nor did the deputy stop the truck

immediately after the farm had been broken into, we nonetheless
held that the totality of the circumstances created a

particularized suspicion. Morsette, 654 P.2d at 507.

When the totality of the circumstances does not create a

particularized suspicion, we have held the investigatory stop to be

unjustified. For example, in Grinde v. State (1991), 249 Mont. 77,

813 P.2d 473, we held that the squeal of tires alone did not

justify an investigatory stop because the officer did not see any

evidence of erratic driving. Similarly, in State v. Anderson

(1993), 258 Mont. 510, 853 P.2d 1245, the facts were not sufficient

for us to hold that there was a particularized suspicion warranting

an investigative stop because the police had not seen the vehicle

violate any traffic laws justifying a traffic stop.

In contrast, Deputy Steffins saw Bauer cross the center line

and drive at a speed well over the speed limit. Pursuant to § 46-

5-401, MCA, a peace officer may stop any vehicle observed in

circumstances that create a particularized suspicion that the

occupant in the vehicle has committed an offense. Clearly,

observing the same dark, 1964 Ford sedan in Livingston that Deputy

Steffins had seen crossing the center line, braking hard around

corners, and speeding toward Livingston 38 minutes previously,

suffices as a circumstance creating a particularized suspicion.

The 38-minute time lapse did not vitiate Deputy Steffins'

reasonable suspicion given the circumstances of the unique car, the

time of day, and the prior traffic violations. Therefore, we

conclude that, under the totality of the circumstances, the facts

10
in this case supported a particularized suspicion that Bauer had

committed an offense.

If, after making a justified investigative stop, the police

officer reasonably believed the driver to be under the influence of

alcohol, he can make an arrest and require submission to a chemical

test. Grinde, 813 P.2d at 476. In other words, "[al founded

suspicion to stop for investigative detention may ripen into

probable cause to arrest through the occurrence of facts or

incidents after the stop." -?---.-I Jess 841 P.2d at 1141. In Jess we -I

held that the arresting officers had probable cause to arrest the

appellant based on their observations of appellant's behavior, such

as the appellant's bloodshot eyes and slurred speech. -rJess 841

P.2d at 1141.

In the instant case, after stopping Bauer for an investigative

stop, Deputy Steffins noticed the smell of alcohol on Bauer's

breath, noticed that Bauer's eyes were bloodshot and glassy, and

noticed that Bauer's speech was slow and deliberate. These were

reasonable grounds for Deputy Steffins to ask Bauer to submit to

physical maneuvers. After Bauer was not able to perform the

physical maneuvers, Deputy Steffins reasonably asked Bauer to take

a breathalyzer test which Bauer refused to do. Pursuant to § 61-8-

402(3), MCA, Deputy Steffins seized Bauer's driver's license.

After considering the relevant factors in 5 61-a-403, MCA, the

District Court appropriately denied Bauer's petition to reinstate

his driver's license. Accordingly, we conclude that substantial

11
credible evidence supports the District Court's decision to deny

Bauer's petition to reinstate his license.

Affirmed.

We Concur:

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